Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1887-04-15

sctiornbie, and II can hardly be supposed that
tho Legislature In an effort 10 suppress duel
ling Intended 10 make all Insulting words
ac,ionhbie without Justification or excuse. "
spoken, and not 20 provide for such words
n puciishod 20 the world In a newspaper. For
CO defsmaioTy or ineultire words rrlftes land
TIE term Includes words printedl Indicate
greater delihcfaiion and malice. and In gen.
etal are more permanent and extensive in their
orcfati0n tLan words spoken. which often pro
coed from sudden passion and may be eoon for.
eeren, 20 are they more woundiug 70 the feel
ings OF The person aggrieved. and con8eauent-
ly more likely 60 lead 20 violence and tho CON-
misfiou OF the oiionce which was designated "
he suppressed.
II Is true that written defamation Is a-tsooa-
Die az GO mrlon Law, and thai any writing IS
Diencus which tcnde "a iniure the reputation
of pereon or 10 render him odioua. cOutempt-
ibie. or Ridiculous. Nillers rs Mopsley.9 Wills.
<c3; ADAMS "a. Lawson, II Graft, $50. Bat II
it were conceded thet aii written words which
are usually conceded as insults are compre-
hended within the definition Of libel. the fact
remains that The remedy at common Law was,
in the Judgment cfihc Legislature, inadequate
for the redress a the grievances II had In
view. Fer II IL essential 10 maintain Al action
fer libel that The publication complained be
false and malicious, and therefore its truth
may fc plead I'm bar oi tho action. and this the
Legislature meant 70 forbid Ia actions under
the statute FOR insults
III. when the injured party sues, p said Judge
Allen. in Brooks q. Galloway, she could be met
with plea Of justification and his whole life
be investigated before au assembled cOmmu-
niiy, his feelings would be douDiy outraged.
The law which proffers redress for insult would
furIish the opportunity for aggravaiing the
outrage and be iieclf en- insulting mocAory.n
"The Insult" he added, "is the ground OF ac-
iion. and that the law considers injurious whe-
ther true or fslse.'
These remarks forcibly show the policy OF tho
legislature In passing the statute as IL Origi-
naliy was; and although IL has since been
amended and later statute. now contained in
the fiftieih section OF chapter H2 OF the Cole ~
1873, permits the truth 81 the words declared
on 10 be pleaded IN any action for defamation,
whether at common law er under the statute,
yetthat circumstance does not affect the ques-
ton before ps The amendment was made at
the revision Of 1919 by striking out Of the
statute so much thereof as provided that no
pea on exception should preclude jury from
passing on tie words complained OF, and In the
section Of The Code above mentioned II Is pro
yided iEat "iD any ociion for defamation the
defendant may Justify by alleging aud proving
that The wordf SPOKEN or written were true"
But this docs not take sway the right, which
existed tcfofe, 10 n ainain an oction like the
present, although The effect may be 10 do away
with one Of the ressons for originally extend
ing the statute 10 written insults. Indeed, the
statute Just quoted would seem 70 have passed
with reference exclusively 10 actions for In .
sulis; for why eT act that the truth Of the words
may be pleaded in an action for slBnder. elmer
spoken or written, when the common law al
ready 90 proyidedf And ibis brings ns 10 con.
sider whether the declaration in the present
case is obnoxious 10 the second objection urged
against It. We think II Is not. After the usual
averment Of The plaintiffs good character and
reputation the declaration sets out the card
published by the defendant On the 18th Of
March. 1874. which II alleges 10 be malicious
and lihellous; ard then, referring 10 the oh
jectionnbie words therein, AYERS that they are
such "a, from their usual construction and
common accepiation, are construed as insults
and tend TO violation and breach OF the peace.
by reason whereof IL concludes the plaintiff
had been greatly injured, &c.
This undoubtedly r. good declaration for an
insult. Under The statute 40 much Of II "a fol-
lows the common law form Of declaration for
iii ii .ls q mere matter Of 3nducement and un-
Objectionable. il Is true the publication &c
clared cp IL alleged 10 be malicious a1d libel
lous; but Il f. alleged 20 10 be because Of the
wOTcs therein particularly mentioned, which
are ayerred Ia be Insulting. etc, In the Ian
guace Of The statute ITSELF We see ro objection
10 this form Of declaring. for, although publ
cation be lbellous at common law, yet II II con-
tain insulting words there Is no reason why IL
mny Lct c declared on under the statute, and
the declaration win he good n Il shows by pro-
per avermenis that the words are within the
stairte. IL will be faulty, however, II COM
mon Law ard statutory cause OF action are
bicrded In one count. Hogan ~. Wilmoth 10
Graft. 80. In The present case the declaration
eets out with sufficient precision n single cause
Therefore the demurrer was rightly oyeriuied.
PRIVILEGED coNxUNIcATIOEs.
The next assignment Of error Il that the
Circuit Court erred al The trial In refusing 70
Instruct The Jury rs prayed by the defendant
and In giving the instructions which were
given to the jury. hnd here the principal
question is-Wheiher the Instructions given
ard thofe which were refused correctly pro-
pounded the law relating TO What are called
privileged communications. This question
must Re decided upon the same principles
which epJly 10 an action for libel or slander OF
common law, since la BD action for insults
under the statute. no less than In common
law action for defamation, malice IL the gist OF
The action. which must be expressly or sub
sisDtially alleged.
10 insult. says Webster. Is ITO leap upon: 10
treat with abuse, insolence. or contempt; t0
commit al indignity upon IA 10 call man
liar" So that without malice. which in this
connection denotes III will, on AN intent 10 iijure
or 20 oii6nd. or 10 wound the feelings OF an-
other. there can be 10 insult. Each case must,
therefore, be governed by its own circun-
sances, The chief OF which Is the dhfmUs OF tho
defendant In using the words complained or
For IL IL obvious that some words, which. II
spOken ccn,emptuously or from III will, would
he universally construed a. insulting aud In
tending 10 violence and breach OF the peace.
would. II spoken under other circumstance, be
considered as uneXcepuOnafe. Even wOrcsof
praise spoken ironically may be intended and
N
many words usually construed as insulting may
lie used harmlossly and Ia Jest Hence 10 ar
rive at Just conclusion the Jury must look 10
the whole case and ell lis surroundings. aud
therefore il ~ enacted that no demurrer shall
preclude the Jury from passing on the words
which from the subject OF the action.
II is not always necessary, however.
TO prove malice expressly. The law infers
malice nom the unauthorized publication of
matter which is insulting or defamatory. The
plaintiff therefore makes out a priDld.facic case
simply by proving the words. whether written
or spoken. as laid in the declaration. But the
rule IL not in1exible. publication is some
times iusii6ed by the occasiOn that IL made un-
der circumstances which rebut the presumption
OF mglice--as for example, when made 10 good
faith. In The performance Of duty, legal or
moral, and with the honest purpose ON the part
of The deir rndant OF protecting his own interest.
Such instances constitute a recognized excep-
lion 10 the general rule. and make u incdm-
bent On The plaintiff 10 prove malice In fact
WHAT Is PRIVILEGED
IT, however. malice lie shown, then the de-
fence resting on the occasion OF the publica-
ton Is rotutted, for 70 make a communication
privileged two things must coneur-hrst, the
occasion must be privileged: and second. II
must Lc used bona Edf and without malice.
Therefore II q communication goes beyond the
% casion ond language Ia used which snneces-
safily def mes the plaintiff, such Language i
not considerc1 as having been used in the due
lection Of the defendants interest. and is not
privileged. And the same rule applies where
ihe publication is more extensive than the
Of the case reasonably require.
Wilson 5s Collins G. aud r.. S73 ,2i Eng.
c. 3GN: Odgers on L. and s., 2e5, 80. II seq
There sre indeed some cases In which the
privilege Is absolute, Of which words spoken IN
his place 10y q member Of the Legislature, or
by judte on the bench, on witness on the
stand In the course OF a Judicial proceeding
are examples, bat with this class OF cases VIC
are not concerned in the present caee.
Whether the occasion 10 privileged ts qnes-
tjon of law for the court, whether u has been
used bosofde Is a question OF fact for the jury.
I. .. moi r. case OF privileged communication
a is error 10 submit 10 the jury the question OF
malice, fer that the law implies. though 10 has
leen held that evidence OF malice may he
given 10 increase the damages. Browage ~.
Trosser 4 Il. and C.. 247, 40 Eng. q. j.. 32D (;
Clark C. MolSpeuy, 22 ID. d., 257 Hamilton g.
Emo, 81 New Ycrk, i16.
The reported cnses ON tho subject OF prTi.
legged communications are very nomerons, anu
ttey shew that while the law as 20 such COM
Il well settled Its application "
narticuler cases is often attended Win uin'-
cuity. They also show that the law In this par
ticuier was formerly more restricted than 81
nreseut the rule having been Rradnaliy
exfended ON The ground that IL is 20 the In
teresf Of society that correct information
should be- obtained as 90 the character snd
standing OF persons with whom others nave
businees or social relations. 30 inat II u
now we'll settled, as laid down Dg baron
PARK Ia the leading case OF Toogood -. Spyring.
/ G. NJ. and r., Isl. that commuoicsuon non
"A